Importers Have to Participate in AD/CVD Challenges to Reap Retroactive Benefits, Says CIT
Importers must have skin in the game to get retroactive benefits from court-mandated antidumping and countervailing duty rate revisions, said the Court of International Trade Dec. 16 as it dismissed a challenge from Snap-on, an importer of aluminum extrusions from China (A-570-867/C-570-868). Although all importers are subject to revised rates after the court affirms the new rate on remand, only importers that have had liquidation suspended because they either participated in the court challenge or in administrative reviews will have the new rate applied to past entries, said CIT.
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Snap-on imported from Chinese company Zhangjiagang GuPai Aluminum Industry 10 entries of merchandise during and shortly after the AD and CV duty investigations on aluminum extrusions from China. Because GuPai wasn’t a participant in the investigation, it was assigned the 375.15% CV duty rate for all other companies. But Snap-on, thinking the goods weren’t subject to the orders, entered them as Type 01 and didn’t pay CV duty cash deposits.
The beginning of two CV duty administrative reviews passed, during which period the Commerce Department issued instructions to CBP telling it to liquidate all entries for companies not participating in the reviews at the rate applicable at the time of entry. Snap-on didn’t participate in either review. After Snap-on had filed the entries as Type 01, CBP had told the company to request a scope inquiry to clarify whether the 10 entries were indeed exempt from AD/CV duties. Snap-on never requested one. Regardless, the entries remained unliquidated because of antidumping duty proceedings on aluminum extrusions from China.
In the meantime, after a series of remands, the Court of International Trade affirmed a recalculation of the all others rate from the investigation (12113029). As a result, the CV duty rate applicable to “all others” company fell to 137.65%. The court ruling took effect Dec. 10, 2012, nearly nine months after the last entry at issue in this case.
Then, in May 2013, CBP issued a Notice of Action telling Snap-on that it was liable for CV duties at the original 375.15% rate. Because all of the entries predated the revision of the CV duty rate in the CIT case, the new rate would not apply, CBP said. Snap-on filed suit in court, challenging the decision to impose the old rate despite it having been found faulty and revised by CIT.
But just because the rate had been changed does not mean that revision automatically applied to entries made before the relevant court ruling, said CIT. Antidumping and countervailing duty law mandates that entries from before the date notice is given of a court decision should be liquidated at the duty rate in effect at the time of entry, unless liquidation has been suspended by a court order, the court said. In this case, liquidation of Snap-On’s entries was suspended for entirely different reasons -- the AD duty proceedings -- so the 375.15% CV duty rate in effect at the time of entry applies, the court said.
To treat Snap-On any differently would be unfair to other importers who aren’t so lucky to have liquidation of their entries suspended for unrelated reasons, the court said. “The fact that Snap-on’s entries were not liquidated for other reasons unrelated to the MacLean-Fogg challenge places Snap-on in the same legal position as any other importer during this period that did not challenge the CVD and was therefore subject to the 374.15% rate,” said the court. “Like the other parties that failed to participate in the review or properly challenge the all others rate, Snap-on will be subject to the proper rate on future entries, but will not gain disproportionately simply because its past entries were not liquidated for other reasons,” it said.
Instead, importers must participate in the court challenge, or at the very least participate in an administrative review if they want to derive the benefits. Otherwise, the incentive would be reduced “for parties to participate in administrative reviews and actively engage with the Department’s procedures by holding out the prospect of free riding on challenges brought by others.”
(Snap-on, Inc. v. United States, Slip Op. 13-150, dated 12/16/13, Judge Pogue)